eDiscovery Planning for Construction Litigation: Your Definitive ESI Protocol Checklist

A detailed ESI protocol will clarify eDiscovery and lead to smoother case planning in every step of the construction litigation process.

Establishing an ESI protocol might seem daunting at first, but answering a few simple questions at the outset of your case will help you stay on top of complicated and confusing eDiscovery matters. This process is even more important in construction litigation, which often includes large amounts of complex data from several different sources and custodians. This checklist lays out the questions that will help you create a strong ESI protocol and maintain a smooth eDiscovery process in your construction cases.

What is an ESI protocol?

ESI stands for Electronically Stored Information, or the digital evidence that dominates most modern litigation – especially construction litigation. Your ESI protocol will lay out your plan for handling this digital evidence. It covers how you will collect and filter data, deduplicate documents, produce evidence, manage privilege logs, and much more. It becomes the road map that guides you through discovery (and beyond!).

With strong ESI protocols, you’ll show up to your Meet and Confer knowing exactly what you need from opposing counsel. These clear requests will prevent road bumps later on in discovery.

What are the benefits of a standardized ESI protocol?

Here are five key advantages that lawyers gain through developing a protocol:

1. You’ll think through discovery for the entire matter.

2. A well-drafted protocol will protect your client’s data and their interests.

3. You’ll identify sources of data that require additional consideration and planning for collection and production.

4. You can leverage the protocol for third-party data.

5. It’s your discovery blueprint for the case and you’ll go back to it time and time again.

Your ESI Protocol Checklist

Think through these questions to ensure that no potential issues are overlooked when developing your protocol for construction litigation.

1. Do you currently have an ESI protocol template in-house?

If you have protocols from past cases, you can use them to create a basic template and tailor it to meet the needs of your current case. If not, there are many matters today where acceptable ESI protocols have been submitted and approved, and those can be helpful in building your own. 

2. What type of case are you involved in, and what are the relevant common data challenges?

The type of case you’re working on will influence the types of ESI that you’ll need to focus on in your protocol. In our last post on The Dispute Resolver, we covered three common data challenges that we typically see in construction litigation. Understanding these challenges is an essential step in crafting an ESI protocol that is tailored to your case.

3. What type of productions have you delivered/received in the past, outside of your current matter?

Think about what you can learn from previous productions. What metadata did you find most useful? Were there times that you needed files in their native format? Did you face any hiccups that could have been prevented? Looking at some “lessons learned” from past matters can be helpful to better customizing your ESI protocol so it covers what you need. 

4. What type of venue will the proceedings be held in?

Consider whether there are any discovery rules or guidelines specific to the venue of your case. Some Federal Courts have detailed guidelines that instruct the parties how to navigate eDiscovery, but unfortunately, most State Courts haven’t addressed these issues. 

5. What type of firm(s) is your Opposing Counsel? (e.g. Mid/Large/Solo)

Different sized firms will have varied resources and approaches to eDiscovery. If you work in a small firm, here are some tips on how to level the playing field in eDiscovery.

6. Where will the majority of your data be collected from?

Think about potential relevant custodians and where their data lies. Will you have to physically collect data from a laptop or backup server? Are social media accounts going to play a role in the case? Is relevant information being discussed in text message form?

7. Is there any proprietary software at issue?

Proprietary or closed-source software is copyrighted by the developer and not free for open use, which can complicate its role in legal issues. You may want to include discussions around cost sharing for necessary licenses. Construction litigation often involves proprietary software used for building information modeling (BIM) such as Autodesk Revit, as well as specialized project management software such as Primavera or Buildertrend.

8. Will there be any hard-copy paper documents to collect?

Consider whether you can negotiate to have paper documents scanned prior to production to simplify review. Ensure proper measures are being taken at the time of scanning, so organization structures are not lost during an electronic conversion.

9. What type of metadata do you anticipate being most crucial during your review? (i.e. When v. Where v. Who)

Metadata, such as timestamps and email authors, is key to streamlining document review. Even if the information is included in the text of the document, it’s still important to ensure that metadata is included in a load file for searching and filtering purposes. It always works better to discuss this upfront because it is extremely difficult to recreate missing metadata after the fact. 

10. Will any culling/filtering method be applicable in your case?

If you or your opposing counsel plan to use predetermined search terms, predictive coding, or other TAR (Technology Assisted Review) tools, you should specify how they will be applied. In any case, early data filtering is an important part of simplifying discovery and reducing costs, so consider which methods you will use and how much transparency you may want between parties.

11. How do you want privilege and/or your privilege log handled?

With the large data volumes common in most modern litigation, it’s become increasingly difficult for lawyers to prevent inadvertent disclosures. Creating a no-fault standard in your ESI protocol can help deter discussions around “reasonable steps” if said disclosure occurs in the course of discovery exchange.

12. How do you want deduplication handled? (i.e. Universal v. Isolated Source)

Deduplication is one way you can reduce your initial data set. Here are some tips for better understanding deduplication.

13. What are your production delivery methods and goals?

Be sure to specify a secure delivery method for the productions. Electronic deliveries are the most efficient solution and offer more protections than sending physical hard drives. However, you must be sure to select a secure file-sharing tool, such as Nextpoint’s data exchange feature.

Click here to download a PDF of the ESI protocol checklist.

Additional Resources

• Winning the Meet and Confer eGuide

• eDiscovery Data Collection Checklist

• eDiscovery Case Management Checklist

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Co-Author Sonali Hanson is the Managing Partner of Nextpoint Law Group and General Counsel for Nextpoint. With over 11 years of experience in the legal field, she has deep experience at the intersection of law, data and technology. She has assisted construction law firms across the country with complex discovery issues, including predictive coding, ESI protocols, data collection, data mining, collections and production. Sonali can be reached at sray@nextpointlawgroup.com.

Co-Author Megan O’Leary has consulted on hundreds of projects, working with many of North America’s top law firms as an expert in litigation communication consulting as well as eDiscovery. She specializes in the visualization of complex legal and technical concepts through the use of clear and compelling demonstratives. Her background in mechanical engineering enables her to specialize in energy, intellectual property, trademark, and product liability matters; however, she has consulted on almost every major area of litigation. Megan can be reached at moleary@nextpoint.com.

Ethical Limits on Preparing a Witness for Deposition or Trial

In this week’s blog post, we are going to take a brief look at ethical issues associated with preparing a witness for a deposition or to testify at trial. Most attorneys would agree that it is permissible to meet with a witness before the witness’s deposition to discuss what to expect. On the other hand, there is no question that advising a witness to provide false testimony would be improper. But what about the area in between those two extremes? For instance, can an attorney suggest to a witness how to phrase answers to anticipated questions that, while true, might not be the way the witness would have answered the question absent the attorney’s coaching?

A little over a year ago, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued ABA Formal Opinion 508: The Ethics of Witness Preparation. The opinion provides certain examples of things that are and are not permissible in preparing a witness for a deposition or trial.

According to the opinion, it is ethical for a lawyer preparing a witness for trial or deposition to:

• Emphasize the importance of telling the truth

• Explain that a truthful answer can include “I do not recall”

• Inquire into the witness’s probable testimony and recollection

• Identify other testimony that is expected and explore the witness’s version of events in light of that testimony

• Use documents with the witness, including using documents to refresh the witness’s recollection

• Identify potential lines of questioning

• Suggest choices of words that might be employed to make the witness’s meaning clearer

• Instruct the witness to testify only about what they know and remember and not to guess

• Familiarize the witness with the idea of focusing on answering the question that was asked and not volunteering information

The opinion also gives certain examples of improper witness preparation that include:

• Counseling a witness to give false testimony

• Advising a witness to disobey a court order

• Offering an unlawful inducement to a witness

• Procuring a witness’s absence from a proceeding

Similarly, the Restatement (Third) of the Law Governing Lawyers § 116 (2000) provides that in preparing a witness to testify, a lawyer may:

• Invite the witness to provide truthful testimony favorable to the lawyer's client

• Discuss the witness's recollection and probable testimony

• Discuss other testimony or evidence that will be presented and ask the witness to reconsider the witness's recollection or recounting of events in that light

• Discuss probable lines of hostile cross-examination that the witness should be prepared to meet

• Rehearse testimony

• Suggest choices of words that might be employed to make the witness's meaning clear

The opinion and the restatement would certainly suggest that a certain amount of “coaching” on how the witness might answer questions is acceptable. However, opinions addressing the issue seem to take a limited view of what is permissible.

In U.S. Welton, CR 09-00153 MMM, 2009 WL 2390848, at *1 (C.D. Cal. Aug. 1, 2009), the district court addressed a case in which an assistant U.S. attorney advised an FBI agent, in advance of a hearing on a motion to suppress a confession, not to describe the conversation she had with the defendant as “softening him up” before reading him his Miranda rights. The court noted that there were no cases definitively delineating the boundaries of permissible witness preparation for trial. However, the court did state that “directing a witness to use (or avoid using) particular words when phrasing an answer is unacceptable conduct, particularly for a prosecutor . . .” The opinion seemed to suggest there was a somewhat higher standard for a prosecutor than there was for lawyers representing private parties. Nonetheless, despite finding the coaching to be improper, the court did not find the coaching to constitute the type of outrageous governmental misconduct that would warrant dismissal of the indictment.

In In re Brooke P. Halesy, 02-10195 (State Bar of Calif. Hearing Dep’t 2006), a deputy district attorney was suspended from the practice of law for, among other things, working with a witness to an extent that tampered with the heart of the witness’s testimony. The underlying case was a murder prosecution. The prosecution’s case turned on the testimony of the pathologist who performed the autopsy of the victim. The opinion described the pathologist as incompetent with a history of having been terminated for inadequate work performance and poor courtroom demeanor. After the problems with the pathologist’s work history became apparent, arrangements were made for the pathologist to work with a speech pathologist to improve his courtroom presence.

The speech pathologist met with the witness 40 times prior to trial. The speech pathologist not only worked with the witness on his demeanor, but also on how to gloss over the problems with his employment history, as well as how to answer questions on direct and cross-examination. The deputy district attorney also provided the speech pathologist with a set of written answers to questions regarding the pathologists’ background and prior employment. The witness was also provided with audio tapes with anticipated questions and prepared answers to those questions.

The opinion found: “as this training progressed, it went beyond its original purpose to improve Dr. Gill’s courtroom presence — it tampered with the heart of Dr. Gill’s testimony to rehabilitate his credibility.” There is nothing in the opinion that suggested that the deputy district attorney directed the witness to testify falsely, but the opinion suggests that the deputy district attorney did not confirm the truthfulness of certain suggested answers.

In In re Meltzer, 136 A.D.3d 14, 15–16; 21 N.Y.S.3d 63 (2015), the respondent resigned from the practice of law following a disciplinary investigation alleging that in preparing a witness for his client's criminal trial, the respondent suborned the witness’s perjury and false trial testimony. Investigators claimed the respondent instructed the witness to “downplay” the number of times he met with the respondent to prepare for trial in the event that he was asked such a question on cross-examination. It does bear noting that at trial, the witness gave factually incorrect testimony about the number of times he had met with the respondent, and the respondent did nothing to correct the false testimony.

Based on the forgoing authorities, it seems reasonably clear that in preparing a witness for deposition or trial, it is permissible to advise the witness to focus on answering the question that was asked and not volunteering information. It is also permissible to rehearse testimony during witness preparation and to suggest choices of words that might be employed to make the witness’s meaning clearer. However, “directing a witness to use (or avoid using) particular words when phrasing an answer” may well cross an ethical line.

If you are interested in a more detailed discussion of depositions, deposition preparation, and fact discovery, please plan to join us for the practicum on Mastering Fact Discovery on January 15, 2025, at the ABA Forum on Construction Law Midwinter Meeting in Tampa.

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Author and Editor Stu Richeson is an attorney in the litigation section of Phelps' New Orleans office, primarily focusing on commercial litigation with an emphasis on construction matters, intellectual property issues and insurance.

Meet the Forum's Neutrals: TOM DUNN

Company: Pierce Atwood LLP

Office Location: Boston, MA

Licensed in: Massachusetts, Rhode Island, California (inactive)

Email: rtdunn@pierceatwood.com

Website:  https://www.pierceatwood.com/people/r-thomas-dunn

Law School: McGeorge School of Law (2004 JD)

Types of ADR services offered: Arbitration

Affiliated ADR organizations: American Arbitration Association

Geographic area served: Massachusetts, Rhode Island, and New England

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Q: Describe the path you took to becoming an ADR neutral.

A: Arbitration and alternative forms to avoid and resolve disputes has interested me since law school. Serving as an arbitrator is rewarding both as a neutral helping people close out disputes, but also as an advocate as it reminds me about how best to communicate with the fact finder.

Q: What percentage of your current legal practice is spent on ADR work? What do you do when not serving as an ADR neutral?

A: About 5% of my practice is currently spent as an arbitrator. My practice primarily focuses on large and complex construction and commercial disputes for owners and contractors. I also assist clients with their construction contracts.

Q: What should attorneys and their clients take into consideration when vetting and/or selecting an arbitrator?

A: Strongly consider the arbitrator’s engagement and leadership roles. Is she active in an organization like the Forum or does she serve on the board of a local construction trade association? Is she a leader of her firm or of a team at her firm/company? Leadership and listening skills are important considerations in the selection of an effective arbitrator.  Often parties heavily weight an arbitrator’s specialized knowledge and experience with the subject matter of the dispute. While that is definitely helpful, the benefits of arbitration will not be realized unless the arbitrator helps to manage and control the arbitration process from the initial scheduling conference through final award.    

Q: What advice do you have for parties when considering whether to choose a single arbitrator or a panel, limitations on discovery, venue, and other aspects of the arbitration agreement?

A: Give deliberate thought about this question and other options you have at the contracting phase.  Not as a contract by contract question, but as a company policy decision. What is the most critical aspect of business disputes for your company . . . winning, speed, low cost, fairness? If your organization chooses arbitration, spend the time to critically evaluate the arbitration process  you want for your company.  There are available tools, like the AAA ClauseBuilder, to assist you in asking the correct questions. Remember, arbitration is a creature of contract so you can best protect and guide your arbitration experience if you put this critical thinking and work into your contract templates.

Q: What measures do you take as an arbitrator to ensure arbitration is less costly and more efficient to litigation?

A: The preliminary hearing is a critical event in an arbitration. That is the best opportunity for me to meet with the parties to understand the nature of the dispute and ways that we can structure the process to streamline the fair resolution of the dispute. I send out a questionnaire prior to the preliminary hearing that raises questions for counsel to discuss prior to the preliminary hearing. I request a written joint submission that summarizes the parties’ positions on the various issues. I make it a point to specifically invite the parties themselves to the preliminary conference to directly listen to discussions and decisions being made. If consensus and commonality about conducting an efficient arbitration process can be confirmed at the preliminary hearing, there is a greater likelihood that those benefits can be achieved. At least there is a “home base” to bring the parties back to if interests deviate during discovery and information exchange.

Q: In what way do you use technology in the arbitration process?

A: Virtual proceedings for the preliminary hearing and other conferences are very helpful. Hearing virtual testimony is also convenient and efficient. Technology also comes up with assisting parties in reasonable protocols for the exchange of electronic data. 

Q: What do you think the future of arbitration will look like?

A: I am hopeful that the construction industry will continue to be a leader in ADR. I see growth in the use of project neutrals for construction projects of varying sizes with the priority fostering collaboration, effective communication, and interim agreements (with a reservation of rights) that allow the project to continue with minimal delays. For more information, see the AAA-ICDR’s Dispute Avoidance and Resolution Board Rules. 

Q: What are some of your interests or hobbies?

A: I am a proud father to two teenage children, a tennis player, and Boston sports fan. I am currently on the Governing Committee of the ABA Forum on Construction Law and past-Chair of Division 1.

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Editor-in-Chief Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Toolbox Talk Series Recap - Undocumented Change Work

In the August 29, 2024 edition of Division 1's Toolbox Talk Series, Don Rea presented on the causes of undocumented change order work and what actions parties to a construction project can take to protect themselves, which compliments and reinforces some of the key points from the May 30, 2024 Toolbox Talk on maximizing profits while experiencing changes during project performance. 

Article 7 of AIA A201 General Conditions covers (i) change orders, (ii) constructive change directives, and (iii) “minor changes.”  Work that falls outside the scope of the construction contract will often fit into one of these three categories.  Rea’s presentation focused on the fact that, regardless of which category applies, proper documentation of the change work is vital. 

In an ideal world, a contractor receives a signed change order before commencing the additional work that is the subject of the change order.  However, in practice, an Owner or upstream contractor often requests that the performing contractor begin the work in advance of receiving a signed change order.  While it is easy to encourage a contractor to strictly follow the contract provisions regarding written notice for change work and to refuse to perform prior to receiving written confirmation, the reality is often more complicated.  Among other things, pressure to keep a job on schedule or to minimize delays can lead to pressure on a contractor to perform change work without written documentation.  In an effort to minimize project delays, there may even be cascading undocumented change work without well-documented costs. A lack of responsiveness from the owner or upstream contractor can act as an additional barrier to proper documentation.

Rea discussed best practices for a contractor to maximize their chances of getting paid for change work without prior written agreement.  He stressed that the key to getting paid for such work rests with the Project Manager.  The more timely and careful the management of documents, the better the chance of resolving any disputes about the change order work. Specifically, Rea recommended that the Project Manager document all oral promises or requests for change orders and send confirmations of the same to everyone involved, including a disclaimer such as “if you disagree, contact me immediately.”  Documentation of the oral promise/agreement and resultant costs can avoid litigation altogether by showing a position of strength and reminding project participants of what actually happened – especially on longer projects, memories fade and people may legitimately remember details differently if there are no contemporaneous records to serve as a reminder.

In addition, Rea encouraged a performing contractor to follow the contractual provisions regarding change work even if the upstream contractor or owner fails to comply with the change order process.  When doing so, it is important to be purposeful in the content of the documentation to assure that there are no contradictions between written submissions. 

As for owners or upstream contractors, Rea urges them to timely reject unmerited Potential Change Orders (PCOs).  Ignoring such PCOs can raise contractual compliance issues, and the passage of time can make the illegitimacy of such claims unclear.  Also, upstream parties should be aware of applicable state laws on prompt payment.

Thank you to Don Rea for the organized and pragmatic presentation on undocumented change work.

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Author Douglas J. Mackin is a construction attorney with Cozen O’Connor in Boston, Massachusetts. Doug counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation and arbitration. Doug can be contacted at dmackin@cozen.com.